frank josephat tukay vs kddi beach kigamboni ltd 2023 tzhc 1216 16 march 2023

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION APPLICATION NO. 408 OF 2022 (Arising from the decision of the Commission for Mediation and Arbitration of Dar es Salaam at Kinondoni dated 3Cth day of October 2022 in Labour Dispute No. CMA/DSM/TEM/187/2020/104/2020 by (Mikidadi: Arbitrator) FRANK JOSEPHAT TUKAY.......................................................... APPLICANT

VERSUS KDDI BEACH KIGAMBONI LTD.......................................... RESPONDENT

JUDGEMENT K. T, R, MTEULEf J, 08th March 2023 & 16th March 2023 This is an application for revision seeking for this court to call for the record of Labour Dispute No. CMA/DSM/TEM/187/2020/104/2020 from the Commission for Mediation and Arbitration of Dar Es Salaam (CMA), revise the proceedings and set aside the award issued therein. The Applicant is further praying for any other order the court deems fit to grant. From what I gather from the CMA record, the Applicant's affidavit and the Respondent's counter affidavit, the applicant was employed by the respondent as a Principal Manager on one year fixed contract. Their relationship shook due to some misunderstandings including i theft accusation against the applicant and poor performance allegations. Due to what the respondent claimed to be poor performance, the applicant was not confirmed to his employment after probation period. The employment ended on 30th March 2020. None confirmation of employment aggrieved the Applicant who filed the aforesaid Labour Dispute in the CMA claiming for compensation of 9 months remuneration for the remaining contractual period plus damages. In the CMA Form No. 3 issues were frame based on firstly, whether the respondent breached the contract without a fair reason and secondly, whether the procedure was followed. The arbitrator found that there was no dispute as to whether the applicant was

under probation and treated the Applicant as having been terminated pursuant to Rule 10 (7) and (8) of the Employment and Labour Relations (Code of Good Practice) 2007 (G.N 42 of 2007). The arbitrator, having in mind that there was no dispute as to whether the Applicant was a probationer, proceeded to find out as to whether the employer complied with the procedures set out under Rule 10 supra in ending the applicant's employment. Having satisfied himself that Rule 10 supra was complied with, the arbitrator concluded that 2 there was a fair reason and fair procedure in ending the Applicant's employment and dismissed the labour dispute. Along with the Chamber summons, an affidavit sworn by the applicant was filed. In the Affidavit, the Applicant alleged that he was charged for an offence of theft and the matter was reported to the police station, thereafter he was released. He attributed the criminal case to the reason for his termination, and challenged the CMA findings in not considering the alleged criminal case. The applicant questioned the legality of the findings in the award and called for a need for the award to be quashed and set aside. In his affidavit, the applicant advanced two grounds of revision as stated as follows: - i) That the arbitrator erred in law by not considering the issue of breach of contract without a fair reason and procedure plus compensation for

defamation in issuing an award. ii) That the arbitrator erred in law by issuing an award contrary to the available evidence and in disregard to the compliance with the procedure of producing Electronic Evidence. iii) That the arbitrator erred in law by issuing an award indicating to have been issued on Sunday 30/10/2022. 3 iv) That the Honourable Court be pleased to quash and set aside the CMA award. The application was challenged through a counter affidavit sworn by Mr. Joel Michael Lupenza who is the respondent's Human Resource Manager. The deponent in the counter affidavit vehemently disputed applicant’s allegation that the award was not properly procured. The application was heard by a way of oral submissions. The Applicant was represented by Mr. Francis Mwakibinga, Personal Representative, whereas the Respondent was represented by Mr. Steven Janson Shilindi, Advocate. I appreciate their rival submissions which will be considered in determining this matter. In submitting for the first ground Mr. Mwakibinga challenged the arbitrator's consideration of the dispute as if the applicant was a probationer while there was a yearly fixed term contract. According to him, the arbitrator ought to have considered the type of contract and not to determine the matter based on probation period while it was not stipulated under the employment contract, and it was terminated before its

expiry. Regarding procedural aspect, Mr. Mwakibinga submitted that the respondent failed to observe procedure in terminating the applicant's 4 employment. He further added that the applicant was never informed by the respondent about the procedure of ending his employment. According to Mr. Mwakibinga, even during hearing in the CMA, the Respondent did not explain how he complied with the procedure. According to him the arbitrator wrongly applied Rule 10 (7) & (8) of the G.N. No. 42 of 2007 which is relevant to employees who are under probation period. He insisted that the applicant had never been informed about non satisfactory probation period as per Rule 10 (8) of G.N. No 42 of 2007. On third ground concerning evaluation of evidence, Mr. Mwakibinga submitted that the applicant was arrested for an allegation of stealing a phone at respondent's working premises and from that day the Respondent did not go to Police to make follow up until when the applicant was bailed out. He further added that the allegation of stealing was cleared by the police after issuing a letter which was tendered in the CMA. He thus prayed for the CMA award to be quashed and set aside and the applicant to be awarded 9 months' salaries as a remaining period in his contract plus compensation for damages of malicious prosecution. In reply, the Counsel for the respondent Mr. Steven Shitindi averred that the

applicant has not explained how the arbitrator has not 5 considered the contract and he did not say which law was breached. He stated that the arbitrator considered the contract as part of evidence or exhibit submitted or tendered by the applicant. He further added that the Applicant's allegation regarding the probation lacks stand because the employment contract contained probation clause. Concerning the argument that the Applicant's contract was terminated before expiring date, Mr. Shitindi submitted that the applicant's contract was terminated early because the applicant failed to meet the expectation of the employer as per the contract. Concerning compliance of procedure in terminating the Applicant's employment, Mr. Shitindi submitted that all procedures were adhered to by the respondent as evidenced by different exhibits tendered at CMA and in accordance with Rule 10 (7) & (8) of G.N. No. 42 of 2007. He referred to Exhibit P3, P4Z and P6. He further added that the reason for termination was poor performance which was intolerable due to the position the Applicant was entrusted with. According to him the issue of police was not a causative of the termination of the employment as it was handled by the police and it was not raised in the CMA. 6 The applicant made a rejoinder which is as well considered in determining the application. Having considered parties' submissions and

their sworn statements together with the record of the CMA, I am inclined to address two issues. The first issue is whether the applicant has adduced sufficient grounds for this Court to revise the CMA award issued in Labour Dispute No. CMA/DSM/TEM/383/2020/155/2020 and secondly, to what reliefs are parties entitled? In resolving the issue as to whether the applicant has adduced sufficient grounds for this Court to revise the CMA award, the grounds of revision contained in the affidavit will be mirrored. The first contention covers the assertion that the arbitrator misconceived the issue of probation by considering the applicant as a probationer while it was not and wrongly found the termination to be fair in terms of reasons and procedure. This assertion is disputed by Mr. Shitindi who submits that the contract contained a probation clause. In resolving the above contention, I had to explore what transpired in the CMA. The arbitrator found that the applicant was terminated from employment and that the said termination was fair on the reason that 7 there was a poor performance which led to non-confirmation of applicant's employment after the expiry of the probation period. According to the arbitrator the procedure for such termination was followed because the Applicant was informed about the Respondent's concerns of poor performance, but the Applicant failed to improve. The

applicant is challenging this finding basing on the argument that it was improperly procured by disregarding the allegation of early termination of employment contract and addressing the issue of probation which was not part of the employment contract. In assessing as to whether the arbitrator erred, I see a contention on arbitrator's considering the applicant as a probationer. It appears to have no dispute as to whether the applicant was employed under a yearly fixed term. The contention is on the fact that the said contract contained a probation clause. I have noted that the denial of probation clause in the contract is made in this revision application. I could not notice it in the CMA. Nevertheless, I had to go through the contract which was tendered in the CMA and admitted as Exhibit P-1 (employment contract). According to clause 2 of the said contract, the applicant was subjected to probation period of 3 months commencing from 1st January 2020 to last on 31st December 2020. The contract lasted on 30th March 2020 which was three 8 months after the date of the contract. Since clause 2 of the contract, provides a probation period of 3 months, this means, the Applicant was terminated at the end of his probation period. Therefore, the applicant's allegation that there was no probation provision in the contract lacks merits since the clause is apparent in the contract. The

Applicant believed to have been terminated due to the criminal allegations under which the applicant was arrested being accused of phone theft. This assertion is disputed by the respondent's Counsel who maintained that the reason for the Applicant's termination was poor performance which was intolerable due to the position he was entrusted with. According to Advocate Shitindi for the Respondent, the issue of police was not a causative of applicant's termination as it was handled by the police. According to Exhibit P4 (written warning) the applicant has been accused of underperformance even before 15th March 2020 which was the day of the theft incident. This being the case, I do not agree with Mr. Mwakibinga that the theft accusation was the cause of termination of the Applicant's employment. In a real sense, the applicant's employment ended at the end of the probation. In my view, ending of probation period is a right of an employer and it 9 cannot be termed as unfair termination. This answers the issue of substantive fairness. On procedural aspect the applicant asserted that he was not consulted by the employer regarding performance and non­ confirmation of the probation period. According to Mr. Mwakibinga, the Respondent violated Rule 10 and 8 of G.N No 42 of 2007 and that the Arbitrator applied the rule wrongly. What I noted in the scenario of this case is that, there were

some series of events prior to the termination of the Applicant. Among the events included the warning concerning his performance and the theft accusation. The events of the warning letters concerning poor performance of the Applicant came before the theft incident. Since the warning letters were among the series of events of informing the applicant about the poor performance, then it cannot be associated with the theft incidents when it comes to non-confirmation of employment of the applicant. The letters in my view constitute communication of Employers concerns. I stand to be guided by Rule 10 (8) of the Employment and Labour Relations (Code of Good Practices) G.N. No. 42 of 2007 which reads; - io 10 (8) Subject to sub-rule (1) the employment of a probationary employee shall be terminated if- (a) the employee has been informed of the employer's concerns; (b) the employee has been given an opportunity to respond to those concerns; (c) the employee has been given a reasonable time to improve performance or correct behavior and has failed to do so. From the above cited provision, the Applicants being a probationer, the employer is required to observe the procedures stated under the Rule. Exhibit P-2 (Business memorandum) was tendered in the CMA to shows the employer's target in the business expected from the Applicant from 20th February 2020. On 26th February 2020 the Applicant

was issued with first warning regarding his performance and on 10th March 2020 another warning letter was issued as per Exhibit P-3 and Exhibit P-4 irrespectively. All these justify objectivity of performance assessment over the applicant, and that he was informed and afforded with the time to improve. In the case of Mwaitenda Ahobokile Michael v. Interchick Co. Ltd, Labour ii Revision No. 30 of 2010, High Court of Tanzania, at Dar es salaam(unreported) it was held; - "This Court has firm view that the purpose of probationary period is to provide the parties with an opportunity to test one another and to find whether they can continue working with each other for a long period in healthy employment relationship." Basing on the above legal stand, since the letter of termination was issued on 30th March 2020, the applicant ought to have improved his performance from the day the first warning was issued to preserve the essence of testing one another in the employment relation. The totality of these events, in my view, constitute compliance with Rule 10 (7) and (8) of G.N. No. 42 of 2007. I am of further view that the respondent had a right to end the employment after the probation period and that the procedure was duly followed. From the foregoing, it is my finding that the applicant has not managed to adduce sufficient cause for this court to exercise its revisional powers to

revise and set aside the CMA Award. The framed issue is therefore answered in the negative. 12 Regarding relief, since the applicant failed to adduce good reason for this Court to exercise its discretion, the only relief is to dismiss the Application and coincide with the findings of the CMA. Consequently, I uphold the decision of the CMA and dismiss the application for want of merit. Each party to take care of its own cost. It is so ordered. Dated at Dar es salaam this 16th Day of March 2023 13